The State of Queensland has been held liable for insufficiently warning of the risks of harm in the Queensland Supreme Court decision of Kelly v State of Queensland  QSC 106.
The plaintiff was rendered a tetraplegic when he ran down a sand dune and landed head first in shallow water at Lake Wabby on Fraser Island. The plaintiff alleged negligence against the government entity that had the care, control and management of the area.
Breach of duty
There was no dispute that the defendant owed the plaintiff a duty of care. In finding that the duty had been breached, the Court considered a number of factors, including:
- The history of injury occurring at the lake: There had been 18 incidents over 17 years.
- The adequacy of the warnings given to visitors: Visitors were shown a warning video before they arrived at the island. The Court found that the video did not provide an adequate warning of the dangers inherent in a visit to the lake because it did not outline the dangers of running down the steep dunes, nor did it contain reference to the numerous past injuries sustained in the area.
- The provision of warning signs at the entrance track, 2.5 km away from the lake: The Court found that the defendant had breached its duty by failing to ensure that the signs more definitively identified the dangers by reference to the number of previous injuries and the dangers of running down the dunes; not just diving into shallow water. The plaintiff had not ‘dived’ in this case, but ‘landed’, head first.
Obvious risk and dangerous recreational activity
The defendant argued that the risk was obvious and involved a dangerous recreational activity. The Court rejected both arguments, after weighing the likelihood and magnitude of risk of injury against the plaintiff’s knowledge and experience, the firmness of the sand, the lack of likelihood of tripping and the lack of foreseeability of serious injury from the activity.
The plaintiff was found to have contributed to his injury by 15%, due to his failure to closely study the warning signs. The Court accepted that the plaintiff would have avoided the activity if the warnings on the video and the signs had stated the true cause and level of the risk of injury.
Public liability risk management lessons
This case provides an important warning about the extent to which an entity may be expected to warn the public of injury risks. General risk warnings may be insufficient, especially for areas with a significant history of incidents and injuries.